Gurabo Lace Mills, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1982

265 N.L.R.B. 355 (N.L.R.B. 1982)

GURABO LACE MILLS, INC.
Gurabo Lace Mills, Inc. and Union General de Tra-
bajadores de Puerto Rico. Case 24-CA-4219
November 12, 1982
DECISION AND ORDER
BY MEMBERS FANNING, ZIMMERMAN, AND
HUNTER
On March 19, 1981, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
The Administrative Law Judge found and we
agree that Respondent violated Section 8(aX3) by
issuing final written warnings to employees Ana
Diaz and Isdoria Gomez to dissuade them from
participating in union activities. We disagree, how-
ever, with the Administrative Law Judge's finding
that Respondent violated Section 8(aX3) by issuing
a final written warning to employee Octavio Ro-
driguez.
The essential facts are as follows:
Rodriguez played a significant role in the orga-
nizing campaign at Respondent's facility. He was a
union adherent and discussed the Union with the
employees on his shift. In May 19791 Rodriguez
contacted the Union and obtained authorization
cards. Some of these cards were distributed to the
employees on the first shift and others were given
to employee Paniagua to be distributed among the
employees on the second shift. Rodriguez collected
the signed cards from the employees on his shift.
At the representation election which took place on
July 17 Rodriguez acted as an observer for the
Union.
On September 15, 1979, the following warning
was issued to Rodriguez:
FINAL WRITTEN WARNING
To: OCTAVIO RODRIGUEZ
It has come to my attention that during
working time you have been leaving the knit-
ting department almost daily and going over
to the area of the mill where Ana Diaz and Is-
All dates hereinafter are 1979 unless otherwise specified.
265 NLRB No. 44
doria Gomez work. When you go over there
you have been engaging in social conversation
with these two girls and as such they have not
been performing their work so that they can
be responsive to you.
This is the first time that this matter has
come to my attention in view of my recent ab-
sence from the plant. However, I want to
inform you that as a supervisor your main
duty is to be present at all working times in
the knitting department and to perform your
basic duties there. Your continued and daily
absences from this area, which have occurred
almost daily for the past two months, must
cease immediately.
If you refuse to perform your job properly I
will have no other choice but to discharge
you.
This warning letter was presented to Rodriguez
on September 18, by Gerald Scher, Respondent's
president, in Scher's office. After reading the letter
Rodriguez declared it was a lie and refused to sign
it. Rodriguez was then told to return to work.
The Administrative Law Judge found that the
warning was issued because of Rodriguez' activities
in support of the Union and therefore was either
violative of Section 8(aX3) and (1) or Section
8(aXl) depending on whether Rodriguez is an em-
ployee or supervisor. He noted that the Board pre-
viously held that Rodriguez was a supervisor in a
representation case involving these parties.- Al-
though such representation decisions are normally
accorded "persuasive relevance and a kind of ad-
ministrative comity"s the Administrative Law
Judge rejected any reliance on the decision on the
ground that the hearing in the representation case
was "tainted" because Respondent's purpose in is-
suing final written warnings to Rodriguez, Gomez,
and Diaz in September was in part to keep Rodri-
guez from possibly obtaining an agreement from
Gomez and Diaz to testify on his behalf at the
hearing to be held on Respondent's objection to
the representation election, where Rodriguez'
status would be examined. We disagree.
' 249 NLRB 658 (1910)
' Ser.-U-sSame Ic., 234 NLRB 1143. 1144, (1978), in which the Board
followed the court in AHubmaWd Cblohi Worken 4f trima [Sqo-
more Shirt Comeyl v. N.LR.R, 365 P.2d 891 (D.C Cir. 1966) The
cout, while holding that the supervisory isue raised in the representa-
tion coe could be reliigpted in a unrelated subsequent unfair labor
practice proceedin& noted, at 905 that "Itihe findings of the Regional Di-
rector may be corded 'permuive relvance' a kind of administrative
comity, aiding the (Administrative Law Judge] and the Board in reaching
just decisions subject however to power of reconsidetion both on the
record already made and in light of any additional evidence that the [Ad-
ministrative Law Judge] finds material to a proper resolution of the
issue."
355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it is true that the warnings were issued 2
days after Respondent received notice that a repre-
sentation hearing would be held, there is nothing
more in the record to support the Administrative
Law Judge's finding that the warnings were issued
for the purpose of influencing the outcome of the
scheduled hearing rather than in retaliation for the
employees' union activities. The timing of the
warnings, standing alone, is insufficient evidence of
such unlawful purpose. Accordingly, we find that
the hearing in the representation case was not taint-
ed.
We, therefore, deem it proper to consider the
record and decision in the representation case as
well as the evidence presented in this case in deter-
mining Rodriguez' status. Indeed, we shall accord
persuasive relevance to the representation decision
in view of the fact that a more complete record on
the supervisory issue was made at the representa-
tion hearing than at the hearing in this case. In the
representation case, Respondent adduced testimony
from five unit employees. Here, Respondent re-
fused to call witnesses on this issue and the only
extended testimony on Rodriguez' status was ad-
duced from Leonard Edelson who acted as the
representative for Respondent.
In its representation case decision the Board
found that:
Rodriguez is responsible for the daily assign-
ment of jobs to day-shift employees, assists em-
ployees when problems arise, makes necessary
reassignments if an employee fails to show on
either the day or night shift, and adjusts em-
ployee grievances. Further, since Esposito [the
general manager] is at the plant only 2 days a
week and as he is unable to converse in Span-
ish, the day-to-day management of the plant is
necessarily handled at least in large part by
Rodriguez. He is also immediately involved in
the hiring process. As Esposito has no com-
mand of Spanish, Rodriguez interviews the
prospective employees and, at a minimum,
heavy reliance is placed on his recommenda-
tions concerning hiring. Also, in at least one
instance-that involving Jesus Rivera-Rodri-
guez, after learning the Employer needed an-
other employee, offered Rivera a job at a spec-
ified wage and Rivera accepted and went to
work for the [Respondent] without prior clear-
ance from Scher or Esposito. In view of the
foregoing-and there is additional record evi-
dence supporting the same result-we find that
Rodriguez has the authority responsibly to
direct employees, to hire and transfer them,
and to adjust their grievances. [249 NLRB at
658-659.]
We find no evidence in this case to warrant a
different determination. The Administrative Law
Judge's finding that Rodriguez was an employee
primarily rested on the following factors: Esposito,
the general manager, was in charge of the day shift
and came to the plant every day; Rodriguez did
not hire employees; and while at various times Ro-
driguez, as an experienced employee, provided as-
sistance to other less experienced employees, he did
not make work assignments or settle grievances.
These findings are not greatly at odds with those in
the representation case.
Specifically, with respect to Esposito's presence
in the plant, the Administrative Law Judge con-
ceded that the subject was not directly addressed.
Instead, the Administrative Law Judge concluded
that Esposito was present more than 2 days a week
because Esposito testified he had seen Rodriguez
talking to employees Diaz and Gomez as many as 9
times a day, every day. However, it should be
noted that Esposito also testified that he could not
testify how many days he had seen these conversa-
tions occur. This testimony therefore lacks suffi-
cient clarity to override the direct testimony in the
representation case that Esposito was at the plant
only 2 days a week. Further, the Administrative
Law Judge found, as did the Board, that Esposito
spoke no English. Therefore the Board's finding re-
mains uncontroverted that due to this deficiency
the day-to-day management of the plant is neces-
sarily handled at least in part by Rodriguez. Con-
cerning the determination that Rodriguez did no
hiring, the Administrative Law Judge noted that
Rodriguez specifically denied hiring anyone and
that Respondent failed to produce rank-to-file wit-
nesses to testify otherwise. He also noted that Ro-
driguez admitted advising an employee of an open-
ing but that the record was not clear as to who
hired him.
We believe that the fuller record in the represen-
tation case is a more reliable basis for deciding the
question of Rodriguez' authority to hire. Indeed,
Rodriguez' testimony in this case supports, in part,
the finding in the representation case that he did
hire at least one employee. Thus, the Administra-
tive Law Judge noted that Rodriguez admitted
writing a letter advising one individual of an open-
ing, that the individual was hired, but the record
was not clear as to who hired him. In addition, the
Administrative Law Judge found, as did the Board
in the representation case, that Rodriguez regularly
assisted Esposito in interviewing applicants for em-
ployment because Esposito did not speak Spanish.
In these circumstances, we adhere to our findings
in the representation case proceeding that Rodri-
guez effectively directed the activities of the day-
356
GURABO LACE MILLS, INC.
shift employees; that his recommendations were
highly influential in Respondent's choice of job ap-
plicants; and that in one case, he hired an employee
on his own initiative. Accordingly, we reaffirm our
conclusion in that case that Rodriguez was a super-
visor.
Since a supervisor is not protected under the Act
from discipline for engaging in unit or concerted
activity, 4 the issuing of the final written warning
letter to Rodriguez is not a violation of Section
8(a)(3), albeit similar letters issued to Diaz and
Gomez did violate this section of the Act.
Relying on Board Decisions such as DR W Cor-
poration d/b/a Brothers Three Cabinets, 248 NLRB
828 (1980), the Administrative Law Judge alterna-
tively found that, even if Rodriguez were a super-
visor, Respondent's warning to him was part of an
integral pattern of conduct designed to interfere
with the employees' Section 7 rights in violation of
Section 8(a)(1) of the Act. In its recent decision in
Parker-Robb Chevrolet, Inc., 262 NLRB 402 (1982),
the Board disavowed the "integral pattern of con-
duct rationale" as the basis for finding a violation
of Section 8(a)(1). Applying the rationale of that
case, we find that Respondent's warning letter to
Rodriguez did not violate Section 8(a)(1) of the
Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
7:
"7. By issuing final written warnings to employ-
ees Ana Diaz and Isdoria Gomez, in order to pre-
vent them from participating in union activities or
suspected union activities, Respondent engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Gurabo Lace Mills, Inc., Gurabo, Puerto Rico, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order,5 as so modified:
4 See, e.g., Stop and Go Foods, Inc., 246 NLRB 1076 (1979); L d S
Enterprises, Inc., 245 NLRB 1123 (1979).
5 In his recommended Order the Administrative Law Judge inadvert-
ently neglected to order Respondent to cease and desist from violating
the Act "in any other manner" although this broad cease-and-desist lan-
guage was included in his notice. The Board held in Hickmott Foods Inc.,
242 NLRB 1357 (1979), that this broad language is warranted only in
cases where "a respondent is shown to have a proclivity to violate the
Act, or has engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for the employees' fundamental statutory
1. Add the following as paragraph l(h):
"(h) In any like or related manner interfering
with, restraining, or coercing its employees in ac-
tivities on behalf of a labor organization protected
by Section 7 of the Act."
2. Substitute the following for paragraph 2(d):
"(d) Remove from the personnel files of Ana
Diaz and Isdoria Gomez the warning notices issued
to them on September 18, 1979."
3. Substitute the attached notice for that of the
Administrative Law Judge.
rights." Considering Respondent's unfair labor practices in light of this
standard, we conclude that a broad order is not appropriate in this case.
Accordingly, we shall order Respondent to cease and desist from violat-
ing the Act in "any like or related manner."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
In recognition of these rights we hereby notify
our employees that:
WE WILL NOT threaten employees with dis-
charge for voting for Union General De Tra-
bajadores de Puerto Rico.
WE WILL NOT create the impression that
union activities of employees are under sur-
veillance.
WE WILL NOT warn or direct employees to
refrain from giving assistance and support to
the Union or threaten said employees with dis-
charge for so doing.
WE WILL NOT lay off employees because of
their union activities.
WE WILL NOT reduce hours of employment
of employees because of their union activities.
357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT transfer employees to less de-
sirable shifts because of their union activities.
WE WILL NOT issue final written warnings
to employees in order to prevent employees
from participating in union activities or sus-
pected union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them
by Section 7 of the Act.
WE WILL NOT discourage membership in
Union General De Trabajadores de Puerto
Rico or any other labor organization by discri-
minatorily discharging any of our employees
or discriminating in any other manner with re-
spect to their hire or tenure of employment or
any term or condition of employment.
WE WILL offer to Jesus Paniagua immediate
and full reinstatement to his former position
or, if such position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or other rights and privi-
leges previously enjoyed, and WE WILL make
him whole for any loss of pay he may have
suffered as a result of his layoff.
WE WILL restore to Jesus Paniagua the
hours of employment normally made available
to him prior to his discriminatory layoff and
make him whole for any loss of pay he may
have suffered as a result of the reduction in his
hours following his reinstatement.
WE WILL transfer Miguel Hernandez to the
first (day) shift.
WE WILL remove from the personnel files of
Ana Diaz and Isdoria Gomez the warning no-
tices issued to them on September 18, 1979.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
a labor organization.
GURABO LACE MILLS, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on May 5, 6, and 7, 1980, at
Hato Rey, Puerto Rico. The charge was filed on Sep-
tember 25, 1979,1 by Union General de Trabajadores de
Puerto Rico,2 herein called the Union. The complaint
issued November 16, alleging that Gurabo Lace Mills,
Inc., herein called Respondent, violated Section 8(aXI)
and (3) of the National Labor Relations Act, as amend-
ed. More particularly, the complaint alleges that Re-
spondent violated Section 8(aXl) and (3) by suspending
' All dates are in 1979 unless otherwise indicated.
· The name or the Union appears as corrected at the hearing.
employee Jesus Paniagua and reinstating him with less
employment than he had previously received and would
normally have received; transferring employee Miguel
Hernandez to a less desirable work shift than he previ-
ously had been assigned to; and issuing final written dis-
ciplinary warnings to Ana Diaz, Isdoria Gomez, and Oc-
tavio Rodriguez because said employees joined and as-
sisted the Union, and engaged in other concerted activity
for the purpose of collective bargaining and mutual aid
and protection. The complaint further alleges that Re-
spondent independently violated Section 8(aX1) of the
Act by interrogating an employee concerning said em-
ployee's membership in, activities on behalf of, and sym-
pathy for the Union; impliedly threatening the same em-
ployee with discharge of employees who voted for the
Union in a Board-conducted election; creating the im-
pression3 upon the same employee that employee union
activities were under surveillance by Respondent; and
warning and directing an employee to refrain from
giving assistance or support to the Union and threatening
said employee with discharge and other reprisals if he
continued to give assistance and support to the Union.
All parties were represented at the hearing and were
afforded full opportunity to be heard and to present evi-
dence and argument. Respondent filed a brief. Upon the
entire record, my observation of the demeanor of the
witnesses, and after giving due consideration to the Gen-
eral Counsel's oral argument and Respondent's brief, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged in the
manufacture of knitted lace products in the city of
Gurabo, Commonwealth of Puerto Rico. During the
year inmediately preceding issuance of the complaint,
Respondent, in the course and conduct of its business,
purchased and caused to be transported and delivered to
its place of business in Gurabo, Puerto Rico, goods and
materials valued in excess of S50,000. Of these goods and
materials, in excess of S50,000 worth were transported
and delivered to Gumbo, Puerto Rico, directly from
points located outside of Puerto Rico. The complaint al-
leges, the answer admits, and I find that Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANiZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Facts
In May 1979 Respondent's plant became the object of
an organizing campaign. At that time, Octavio Rodri-
' A second similar allegation was withdrawn at the hearing.
358
GURABO LACE MILLS, INC.
guez, one of Respondent's employees,4 contacted Juan
Eliza Colon, an organizer for the Union, and obtained
from him union representation cards to be distributed
among the employees. He, himself, distributed some of
these cards among the employees on the first shift, talked
to them about the Union, then talked to and gave addi-
tional cards to Jesus Paniagua, a second-shift employee,
for further distribution among other second-shift employ-
ees. Subsequently, Rodriguez collected the signed cards
from those employees to whom he had distributed them.
One of the day-shift employees who signed a union au-
thorization card given to him by Rodriguez was Miguel
Hernandez. He, like the others, returned the signed card
to Rodriguez. Paniagua gave authorization cards to two
of his night-shift coworkers s who filled them out, signed
them, and returned them to Paniagua. Paniagua eventual-
ly returned these cards to Rodriguez. Paniagua also
signed a card himself and returned it to Rodriguez.
On June I the Union filed a petition with the Regional
Office of the Board to represent Respondent's employ-
ees.6 On June 7 a notice of hearing issued and a hearing
was conducted on June 11. At this hearing, the subject
of supervision, and therefore eligibility to vote, was dis-
cussed. Gerald Scher, Respondent's president, Joseph
Esposito, Respondent's plant manager, and Octavio Ro-
driguez testified at the hearing. At the end of the hearing
it was agreed that everyone employed at Respondent's
plant could vote except Esposito. The Decision and Di-
rection of Election issued on June 20 and the election
was scheduled for July 17.
Some time in June, according to Miguel Hernandez,
while the two were standing at the entrance to the plant
discussing other matters, Esposito interrupted the con-
versation to ask Hernandez' opinion of the Union.7
When Hernandez replied that he did not know much
about it and had nothing to say to him, the subject was
dropped.
During the second week in July, about a week before
the election, Hernandez was at his machine when Espo-
sito once again brought up the subject of the Union. He
told Hernandez that the boss had a list of names of the
people who were going to vote for the Union and that
when the election was over these people would be sus-
pended or laid off. 8
On July 17 the election took place in accordance with
the Decision and Direction of Election. Rodriguez was
the observer on behalf of the Union and employee
Ramon Montanez was the observer on behalf of Re-
' This individual was found by the Board to have been, at the time of
the organizing campaign, a supervisor within the meaning of the National
Labor Relations Act. Gurabo Lace Mills Inc., 249 NLRB 658 (1980). On
the facts before me, discussed infra, I shall find otherwise.
' Gamaliel Diaz Hernandez and Francisco Solivan Sanchez.
I Case 24-RC-6328.
7 This incident which, as noted above, occurred in June was not al-
leged in the complaint as a violation. Interrogation is alleged to have oc-
curred during the second week of July (para. 5(a)). The record, however,
reveals no evidence of interrogation in July. If the June incident is meant
to be the basis for allegation 5(a), I find that it is not sufficient for me to
conclude that Respondent coercively interrogated its employee in viola-
tion of the Act. Genova Express Lines. Inc., and Genova Transport, Inc.,
245 NLRB 229 (1979).
s As noted earlier, Esposito denied talking to any employees concern-
ing their union activities or sympathies. Hernandez is credited.
spondent. Rodriguez' vote was challenged on grounds
that he was a supervisor. The tally of ballots showed
that of 14 ballots cast, 7 were in favor of Petitioner, 6
were cast against the Union and Rodriguez' vote, being
challenged, could be determinative.
The day after the election, July 18, when Jesus Pania-
gua, the employee who had distributed union cards
among night-shift employees, arrived at the plant to
begin work, Esposito told him, "You don't have any-
more work. You're laid off. Go collect."9 Paniagua re-
quested "a paper to take to unemployment" but Esposito
refused to give him such a paper and told him to have
the unemployment office call the factory.' 0 Paniagua
then requested that when he picked up his check on
Thursday, payday, for the previous week, that Respond-
ent have the extra 2 days' pay (for July 16 and 17) there
for him to pick up as well, so that he need not have to
make a special trip to the plant for the purpose of pick-
ing up the additional money owed to him. Esposito re-
fused this convenience and told Paniagua that he would
have to wait until the following week to pick up the
extra 2 days' pay. Paniagua pointedly advised Esposito
that for him, Paniagua, not to get angry, Esposito should
have the check ready, in safekeeping, when he arrived.
That Thursday, when Paniagua arrived to pick up his
check, Esposito had 2 days' additional wages for him to
pick up in cash.
Respondent admits that, on the date after the election,
it laid off Jesus Paniagua. Esposito testified that, at that
time, he told Paniagua he was being laid off because
Leonard Edelson, part owner and officer in the Compa-
ny, had called him and told him to shut down some of
the production machines, Paniagua's machines in particu-
lar," I because they were not needed at the moment. The
call was received, according to Esposito, on July 17. He
further testified that, since Paniagua was the last employ-
ee hired, he would have to be the first one laid off under
the circumstances. Esposito testified that he told this to
Paniagua and further informed him that, when he needed
him, he would call him.
Edelson testified that he had "advised Gurabo to stop
six machines because we were slowing down and I did
not want a lot of additional inventory this year with the
talk of recession, inflation and shortages of yarn."
Edelson testified further that in the past the Company
would close goods out when it was slow but he decided
to change this policy. Respondent had a reduction, ac-
cording to Edelson, of approximately one-third when it
laid off Paniagua from the second shift. Edelson stated
9 According to Paniagua, no reason was given to him by Esposito for
his layoff. Esposito admitted during the hearing that he had told a Board
agent that he had not been present when Paniagua was laid off but that
the reason for the layoff was that business was slow. I credit Paniagua's
description of the layoff incident.
'0 Esposito testified that Respondent never gives such letters; that the
practice is for the employees to go to the Labor Department, apparently
to file a claim, and for the Labor Department to contact the Respondent
concerning the matter. Nevertheless, Esposito testified, in this case he
gave Paniagua the requested letter at a later time.
l Through testimony adduced later through Esposito, it becamen
clear the the six machines which were shut down included some which
had and others which had not been assigned to Paniagua. Edelson testi-
fied that he ordered six machines shut down, not necessarily Paniagua's.
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Paniagua was the individual chosen for layoff be-
cause he had been the last person hired. Edelson volun-
teered that Respondent laid off Paniagua at the time it
did, right after the election, because he did not want to
do it prior to the election since he was concerned that it
might be considered illegal or might "taint the election."
On July 20 Respondent filed Objections to Conduct
Affecting the Results of the Representation Election.
The Region subsequently investigated both the objec-
tions and the challenged ballot and thereafter, on Sep-
tember 13, issued and served upon the parties a Supple-
mental Decision, Order, and Notice of Hearing in which
he dismissed three of Respondent's four objections and
reserved ruling on the remaining objection pending a
final determination of Rodriguez' status by the Board.
This issue, which had been raised by means of Respond-
ent's challenge to Rodrirquez' ballot, was ordered to be
resolved through a hearing scheduled for October 18.
On September 15,'2 2 days after the Supplemental De-
cision, Order, and Notice of Hearing issued and was
served on the parties advising them that the question of
Rodriguez' supervisory status would be the subject of a
hearing, the following warning was issued to Rodriguez:
FINAL WRITTEN WARNING
To: OCTAVIO RODRIGUEZ
It has come to my attention that during working
time you have been leaving the knitting department
almost daily and going over to the area of the mill
where Ana Diaz and Isdoria Gomez work. When
you go over there you have been engaging in social
conversation with these two girls and as such they
have not been performing their work so that they
can be responsive to you. 13
This is the first time that this matter has come to
my attention in view of my recent absence from the
plant. However, I want to inform you that as super-
visor'4 your main duty is to be present at all work-
ing times in the knitting department and to perform
your basic duties there. Your continued and daily
absences from this area, which have occurred
almost daily for the past two months, must cease in-
mediately.
If you refuse to perform your job properly I will
have no other choice but to discharge you.
The warning was signed by Joseph Esposito and wit-
nessed by Ramon Montanez. Is
12 Though the warning was dated September 15, it was not actually
delivered to Rodriguez until 3 days later. The September 15 date is im-
portant, however, because it shows the timing relationship between the
receipt of the Supplemental Decision and the decision to issue the warn-
ings.
t Emphasis supplied.
L4 Ibid.
Ad Ramon Montanez served as Respondent's observer at the represen-
tation election and challenged Rodriguez' ballot on grounds that he was a
supervisor, allegedly at the instruction of Respondent's attorney. It is in-
teresting to note that following the October hearing, Montanez was re-
warded by being given Rodriguez' job. This switch of jobs between Ro-
driguez and Montanez was not, however, alleged in the complaint as a
violation, nor was it litigated.
On the same date, the following identical warnings
were sent to employees Ana Diaz and Isdoria Gomez:
FINAL WRITTEN WARNING
I have been informed that you have been failing
to do your work during working hours, almost
daily, for the last two months' 8 by devoting your-
self to conversing with your supervisor Octavio Ro-
driguez.
I wish to inform you that this conduct and ne-
glect of your work fcr the sake of conversation is
not acceptable in our company, so that if you con-
tinue to refuse to complete your work in good
order, I will have no alternative but to discharge
you.
On September 18, 1979, Esposito approached Rodri-
guez while he was working at his machine and told him
that Gerald Scher, Respondent's president, wished to see
him in his office. Esposito accompanied Rodriguez to
Scher's office where Scher presented Rodriguez with a
letter' 7 which he asked Rodriguez to sign. The letter
stated that Rodriguez was a supervisor for Gurabo Lace
Mills and that he had been taking employees Ana Diaz
and Isdoria Gomez out of the plant to talk with them
during working hours.' 8 After reading the letter Rodri-
guez looked at Esposito and asked him if he were re-
sponsible for telling Scher what he considered to be a
lie. Esposito then explaibed to Scher that it was inside
the plant that Rodriguez had been talking to Diaz and
Gomez, not outside. After Esposito made this oral cor-
rection and after Rodriguez refused to sign the warning
letter, he was sent back to his machines to continue
working. After working for about 5 minutes, Esposito
came out and again told Rodriguez that Scher wanted to
speak to him. For a second time Esposito accompanied
Rodriguez to Scher's office. This time Scher talked to
Rodriguez about a case which the latter had pending
with the Commonwealth of Puerto Rico Labor Depart-
ment and which Scher acknowledged involved his owing
a lot of money to the workers. He then informed Rodri-
guez that he had come to San Juan to visit the Labor
Department's office where he had proved to them that
he "didn't owe one single cent to the workers." Rodri-
guez responded that, if this were the case, Scher should
be happy. Scher, then returning to the original subject,
1 It had been 2 months since the election.
" Rodriguez testified that the letter shown to him by Scher on Sep-
tember 18 was not exactly the same as the one directly quoted above.
The implication is that it was similar. Both Edelson and Esposito testified
that the three warning notices described herein were the only disciplinary
letters ever issued to any employees by Respondent. Esposito testified
that though the three warnings were given to Rodriguez, Diaz, and
Gomez, since the three refused to sign them, Respondent kept them.
They had, according to Esposito, been prepared by Scher and either
mailed or handed to him. His testimony was confused.
s' Leonard Edelson testified that there is no such thing as a set of
written plant rules and nothing in writing concerning a prohibition
against employees talking to each other. Esposito, on the other hand, tes-
tified initially that there was in fact a set of written plant rules in exist-
ence. When counsel for the General Gounsel pointed out that the same
had been subpoenaed, Esposito then denied their existence. Still later he
again acknowledged their existence, then again denied it.
360
GURABO LACE MILLS, INC.
told Rodriguez that, if Esposito caught him talking to
the employees, he was authorized by Scher to fire him
immediately. Rodriguez was then again sent back to
work. 1
Diaz and Gomez were called in to be given their
warnings probably on the same day that Rodriguez was
given his. Ramon Montanez was retained as a witness by
Esposito during these disciplinary interviews.
Along with the above-described disciplinary letters
there were placed in the personnel files, attached to the
warning letters addressed to Diaz and Gomez, disciplin-
ary forms both signed by Esposito. On these forms it was
stated that the two employees had been warned orally on
four occasions, presumably about stopping work in order
to engage in conversations. However, when Esposito
was asked if he had ever spoken to any of the three
about this subject prior to the issuance of the letters, he
denied it. These disciplinary forms had never been used
at Gurabo Lace Mills before. Esposito testified with
some doubt that the forms came from Westchester Mills
in New Jersey. However, the forms bear the letterhead
of Gurabo Lace Mills, Inc., and are written in the origi-
nal in Spanish. I conclude that these forms were pro-
duced by Respondent for the special and particular pur-
pose of covering the incident herein discussed. Esposito
signed the forms despite the fact that they are in Spanish
and he neither speaks nor reads Spanish.20
Miguel Hernandez, an employee of Respondent, was
hired to work on the night shift in 1976. He worked on
the night shift for about a year and a half, at which time
he was transferred to the day shift. When transferred to
the day shift Hernandez was informed that it might be
for just 2 weeks or it might be permanently. In reality,
Hernandez was switched to day shift for Ramon Mon-
tanez, a day-shift worker who was transferred to the
night shift to take Hernandez' place because of some dif-
ficulty he had been having with another employee on the
day shift. Both Hernandez and Montanez had been
working on the warping machine.
On September 18, the same day that Rodriguez, Diaz,
and Gomez received their warnings, Scher called Her-
nandez into his office at 2:55 p.m. and told him that as of
the following day he was being transferred back to the
19 The description of this incident appears as credibly described by
Rodriguez in his testimony.
Esposito testified concerning this matter that in September he had in
fact spoken to Scher about observing Rodriguez speaking to employees.
He could not recall, however, whether this discussion with Scher was in
person or over the telephone. Esposito testified that, when he saw Rodri-
gues speaking to other employees, it was outside the knitting room and
that these employees would stop working in order to listen. Despite his
apparent displeasure with this alleged activity, however, Esposito ad-
mitted that he said nothing to Rodriguez or the other employees about
this matter. Nor did Esposito go over to where the conversation was sup-
posedly taking place in order to find out what was going on, although he
admittedly did not know what they were talking about. Esposito conced-
ed that the discussion may even have been about work-related matters.
20 Esposito's testimony that the forms were sent from Westchester to-
gether with the numerous contradictions in his testimony convince me
that his testimony was largely adduced to support Respondent's position
with little regard for the truth of the matter. Edelson acted as attorney
and frequently led Esposito through his story, backing him up and re-
routing his statements in order to correspond to Edelson's preferences. I
find Esposito's testimony to be totally lacking in candor and sincerity and
credit all testimony rather than his, where contradictions exist.
night shift. The ostensible reason for the transfer as ex-
plained by Scher was that he had checked the cards and
found that Gamaliel 2t Diaz had been with the Company
longer than Hernandez had been. Hernandez advised
Scher that he did not know whether he could work
nights but would let him know the following day. The
following day Hernandez agreed that he would work
nights, there being no apparent alternative. As of Sep-
tember 24 Hernandez was involuntarily placed on the
night shift, Diaz was placed on the day shift, and the fol-
lowing day the charge was filed by the Union alleging
violations concerning the treatment of Hernandez.
Esposito testified that Diaz was transferred to the day
shift on September 24 and that the decision to make that
change was made by both Scher2 2 and himself, jointly.
Esposito stated that Diaz was transferred to the day shift
and Hernandez to the night shift because the former had
more experience, particularly on the warping machine,
and could, in fact, run two warping machines simulta-
neously, whereas Hernandez could run only one warping
machine at a time. Esposito argued that the running of
two warping machines simultaneously was advantageous
because it was thus made possible to keep all of the knit-
ters busy and thereby increase production.
Meanwhile, on September 14, Scher advised Paniagua
by certified letter that he should report to work Septem-
ber 21 "to receive pertinent instructions." The letter also
contained a caveat that, if he failed to report as instruct-
ed, he would be replaced. When Paniagua reported for
work, he went in to see Esposito and showed him
Scher's letter. Esposito, however, told Paniagua that he
did not know that Scher had called him back to work,
and that Paniagua should return the following Monday,
after Esposito had a chance to talk with Scher. On
Monday, September 24, Paniagua again reported to
Esposito who told him that henceforth he would be
working a 35-hour week, 5 days per week, with an hour
off for lunch.2 3 Prior to his layoff, Paniagua had usually
worked in excess of 70 hours per week, and, when he re-
turned, true to Esposito's word, he worked the limited
number of hours promised, at least for the first several
weeks. Meanwhile, the other employees, 24 during the
period immediately following Paniagua's reinstatement,
continued to work, on the average, over 70 hours per
week.
On October 18, 19, 22, and 23 the hearing was held
before the National Labor Relations Board to determine
the very important question of Rodriguez' supervisory
status. Since Rodriguez had been the primary organizer
for the Union, the outcome of the election might well be
determined by the answer to this question. On December
17 the Hearing Officers' Report and Recommendations
on Challenged Ballot issued. In it the hearing officer
found that Rodriguez performed leadman functions and
I Also appearing in the transcript as Galmial Diaz.
22 Scher, who at the time of the hearing had just recently been dis-
charged from the hospital, did not testify. Nor did Respondent accept the
offer of a continuance so that he might do so.
as Other employees received one-half hour for lunch. Paniagua
worked the 35-hour week until December sometime, at which time he
was once again permitted to work his regular number of hours.
s4 Female employees always worked 35 to 40 hours.
361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not possess supervisory authority. He recommended
that the challenge to the ballot of Rodriguez be over-
ruled. On May 20, 1980, however, the Board reversed
the hearing officer and determined that Rodriguez was at
all relevant times a supervisor.2 5
Analysis
Paragraph 5(a) which alleges unlawful interrogation
has been dealt with in an earlier section of this Decision.
I find no merit to this allegation.
Paragraph 5(b) alleges that during the second week of
July Esposito impliedly threatened an employee with the
discharge of those employees of Respondent who voted
for the Union in the forthcoming election. As noted ear-
lier, employee Hernandez was told by the plant manager
that the boss had a list of names of the people who were
going to vote for the Union and that when the election
was over these people would be suspended or laid off. I
find the statement patently in violation of Section 8(a)(1).
Paragraph 5(c) alleges that during the conversation de-
scribed above Respondent created an impression that
union activities were under surveillance by Respondent.
I find that Esposito's statement would certainly have that
kind of effect on Hernandez. The General Counsel has
proved the violation.
Paragraphs 6(a) and (f) allege that employee Jesus
Paniagua was suspended because of his union activity.
As noted in the previous section, Paniagua received from
Rodriguez a number of union cards to distribute among
night-shift employees. Besides signing a card himself,
Paniagua gave cards to two other employees on the
night shift, got them signed also, and returned the three
signed authorization cards to Rodriguez. There is no
question that Paniagua was the most active union activist
at the plant with the single exception of Rodriguez.
Company knowledge of Paniagua's organizing on
behalf of the Union may justly be inferred on the basis of
the small plant theory, 2 6 there being just 14 employees
employed at the plant, only 5 on the night shift on which
he worked. More importantly, however, Esposito himself
acknowledged to Hernandez that "the boss had a list of
names of the people who were going to vote for the
Union and that when the election was over these people
would be suspended or laid off." Finally, and most im-
portantly, Esposito admitted on the stand that Gamaliel
Diaz had told him prior to the election that Paniagua
had forged his, Diaz', signature to a union authorization
card, thus specifically implicating Paniagua in the organi-
zational campaign and advising Respondent directly of
his role in it.
In light of Paniagua's known union activity and the
threat of management to suspend or lay off union adher-
ents immediately after the election, the timing of Pania-
gua's layoff the very next day after the election provides
25 249 NLRB 658.
26 Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959); Don Swart
Trucking Co., Inc., 154 NLRB 1345 (1965), affd. 359 F.2d 428 (4th Cir.
1966).
conclusive evidence that management's threat was,
indeed, being carried out.27
Although I consider the evidence conclusive that Pan-
iagua was terminated for discriminatory reasons clearly
violative of the Act, it is still worthwhile, for purposes
of review, to examine Respondent's contention that it
had legitimate nonviolative reasons for terminating Pan-
iagua at the time it did. Respondent's records, it would
seem, tend to support its contention that Panaigua's
layoff might have been the result of economic factors,
for those records indicated that, at the time of Paniagua's
separation, during that quarter, the total number of hours
worked was less then during the same quarter of the pre-
vious year and, indeed, less than the number workerd
during the previous quarter of 1979. Thus, it would
appear, at first glance, that there were, in fact, fewer
hours of work available for Respondent's employees at
the time Paniagua was terminated than during compara-
ble earlier periods of time.
However, the record indicates that Gurabo Lace Mills
has only one customer, Westchester Lace, its parent
company located in New Jersey. Westchester determines
which of its own orders will be filed by Gurabo, which
by its own New Jersey mill, and which will be subcon-
tracted to other companies. Similarly, Leonard Edelson
who currently owns 42 percent2 8 of Gurabo and is an
officer of the Company, by telephone or letter from New
Jersey controls production at Gurabo, instructing the
plant manager at Gurabo Mills what type of production
Westchester requires, what changes in the machines must
be made to meet these requirements, and which machines
to shut down in order to slow production. What all of
this means is that whereas an independent company's
production is dependent on orders from independent cus-
tomers and is subject, to a large degree, to the vicissi-
tudes of the market place, Gurabo is more like an ad-
junct or appendage2 9 to Westchester whose officers can
manipulate its production for whatever purpose they
may have at the time. Thus, the drop in production at
Gurabo may or may nor have a direct relationship to the
number of orders which Westchester must fill for its cus-
tomers. In short, I find that in the absence of any records
from Westchester showing a drop in orders for the type
of goods manufactured at Gurabo, the drop in produc-
tion at the latter plant does not conclusively indicate that
Paniagua's layoff was necessitated by legitimate econom-
ic considerations. Indeed, it is equally valid to assume
27 In light of Esposito's threat, Edelson's explanation that Paniagua
was laid off right after the election because to do so before the election
might be illegal or might taint the election is rejected.
28 Though Edelson did not become a 42-percent owner until October
1979, the record is clear that during the entire relevant period his author-
ity was as described herein. The other part owner of Gurabo Lace Mills
is Gerald Scher. Edelson and Scher are also the owners of Westchester
Lace as well as its managers.
29 Indeed, Edelson testified that Westchester Lace has 32 knitting ma-
chines. Gurabo has 18 machines significantly numbered 33 through 50.
This sequential numbering system, the transfer of personnel, management,
and rank-and-file from Westchester to Gurabo, the fact that virtually all
operations at Gurabo are directed from New Jersey, and that all records
are kept in New Jersey convince me that Gurabo is operated solely as an
addition to Westchester and is totally subservient to the production re-
quirements of Westchester. Sales records were subpoenaed but were not
produced. An adverse inference is taken.
362
GURABO LACE MILLS, INC.
that the drop in production was the direct result of his
layoff rather than the other way around, and that factors
other than production should therefore be given more
weight in determining the reasons for Paniagua's layoff.
Among the factors to be given consideration in deter-
mining the true reason for Paniagua's layoff are, as noted
above, the fact that he was a union adherent, that man-
agement had threatened to fire union adherents after the
election was over, and that, true to Esposito's word,
Paniagua was terminated immediately after the election.
Thus, the timing of the discharge, occurring when it did,
is an important factor in determining the real reason for
his discharge.
Another factor to be considered is the way that the
exit interview was conducted. Thus, Paniagua testified
credibly that on July 18, the day after the election, he
reported to work as usual and was abruptly told, "You
don't have any work. You're laid off. Go collect." It
seems to me that if management bore Paniagua no ani-
mosity and his layoff was strictly a matter of economic
necessity, Esposito would have injected into his notice of
layoff some note of sympathy instead of coldly telling
him, "Go collect!" Similarly, a strictly unavoidable
layoff of a faithful employee would have dictated some
advance notice to afford him time to seek out other em-
ployment. Finally, even in the absence of advance notice
of the layoff, it would seem that if management bore
Paniagua no ill will it would have permitted him to com-
plete the workweek through Saturday, rather than sud-
denly suspend him on a Wednesday, in the middle of the
week, without permitting him to even finish out the day,
though he had already reported to work and was ready
to perform his duties. Esposito's initial refusal to provide
Paniagua with a written layoff notice to give to the un-
employment office and his denial of Paniagua's legitimate
request that his next paycheck include the 2 days he had
just worked that week smacks rather of a vindictiveness
consonant with animosity probably borne of manage-
ment's displeasure with Paniagua's union activity. A
purely economic layoff would more likely be attended
by a more altruistic attitude toward such a request.
Another factor to be considered in determining the
true reason for Paniagua's sudden suspension is the fact
that no one had ever been laid off by Respondent before.
Esposito testified that in the 7 years that the Company
had been operating no one had ever been laid off
before.3 0 Rather than lay off an employee, Esposito ex-
"o Esposito made this sttement while under direct examintion by
counsel for the General Counsel. On crramination by Edelson, the
following testimony was adduced:
Q. Okay. Joe. you spoke about not laying off in the past according
to seniority. That's what you told Mrs Belaval, is that correct?
A. Right.
Q. Okay. Can you recall any incident where we ever laid anyone
off before Paningua?
A. In the plant?
Q. Yes
A. No.
This clearly was not the answer that Edelson wished to have in the
record, so:
Q. We never laid off a girl or anyone else?
A. O, Yeh. We laid off Geraldine [sic].
Though Edelson apparently obtained the answer he desired by means of
steering the witness to it, the Company's own records. its timecards, indi-
plained, the Company would reduce the total hours
worked by employees when production was slow, then
increase the number of hours when Respondent again
became busy. Paniagua's was the very first instance
where, instead of reducing the total number of hours
worked by all employees, an employee was laid off.t3
This was a total break with past practice. In the past,
Respondent also took the option of slowing the machines
or transferring employees from one job to another,32
rather than lay off an employee when less production
was required. Again, Respondent chose not to do this on
July 18 and, instead, for the first time, opted to lay off
Paniagua.
Esposito testified that, after Paniagua was laid off on
July 18, the other employees continued to work their
regular number of hours. The payroll records of Re-
spondent indicate that during the 10 weeks following
Paniagua's layoff, the other knitters worked in excess of
70 hours per week most weeks. This included, of course,
a great deal of overtime. Clearly, if Respondent were so
disposed, it could have shared the work among all the
knitters and kept Paniagua working just as it had done in
the past. Its sudden change from past practice at the ex-
pense of Paniagua evidences a violative motivation, par-
ticularly in light of the fact that Paniagua, himself,
worked several hours of overtime the day before his
layoff ostensibly because of a lack of work.
cate that as of at least July 20, 2 days after Panigua's layoff, Jeraldin
Rodriguez was still employed. Clearly, Esposito sang the song orchestrat-
ed by Edelson's examination.
Though Esposito went on to state that Jeraldin Rodriguez was the
youngest of the three female employees in seniority, her payroll records
were not offered to substantiate Esposito's testimony.
"1 Esposito's testimony appears here as testified to while undergoing
direct examination by counsel for the General Counsel. Later, when un-
dergoing cross-mination by Edelson, who acted as rpr tative of
Repondent, Esposito hedged on this point, frequently contrdicted him-
self, reversed his field, and generally discredited himself I find his initial
testimony far more credible than his later attempt to change his statement
under the guiding influence of Edelson, e.g.:
A. What I meant i that when we slow down, which has never
happened, we slow down the production.
Q. But you sid that-you just now said we never work less than
ten hour, so bow could we be slow?
A. Well so far we've never been slow.
Q. We've never worked leks than ten hours, is that what you are
saying?
A. Right.
Q. But you said--ain, I have to ask you this again, Joe. You
made a statement, and you said the way we slowed down in the past
is by cutting back the hours in the mill. Have we ever done that?
A. No, that wm a mistake.
"s This testimony of Esposito also reflects that which was adduced
under counsel for the Geeral Counsel's direct examination. Later, under
Edeson's croexaminado, the following testimony was elicited:
Q. So have we ever taken a knitter off a machine when we slowed
down and had him do other work around the place?
A. Well its happened a lot of time
Q. Tell me one time when we stopped six machine and had a
knitter do other things in the place.
A. No not that We never stopped a machine and put a knitter to
do some other work.
Once again I credit Esposito's initial testimony adduced during counsel
for the General Counsel's direct examinaion rather than his later testio-
ny adduced by Eds, on, o cr'oexamination by me ns of leading ques-
tions, argumentatio, and changes in tone of voice and emphasis of sylla-
ble designed to elicit information clearly supportive of Respondent's posi-
tion, and contrary to the witness' prior testimony.
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edelson testified with regard to the decision to lay off
Paniagua that July is historically a slow month in the
textile industry. He stated that, in previous years, Re-
spondent continued production and accumulated inven-
tories during the slow months but that this year it was
decided, because of the "talk of recession, inflation and
shortages of yarn," not to accumulate inventories.
Rather, Respondent determined, for the first time in its
history, to stop operation of six of its knitting machines.
Esposito supported this much of Edelson's testimony by
stating that the reason for Paniagua's layoff was that he
had received orders from Edelson in New Jersey on July
17, the day of the election, to shut off Paniagua's ma-
chines 3 3 and lay him off.34 The following day, accord-
ing to Esposito, he did so.
When Esposito was asked what procedure was fol-
lowed when one of the employees was absent, he stated
that the other employees who were present would take
care of the absent employee's machines. Similarly, when
a particular machine broke down, the specific employee
assigned to that machine simply watched one machine
fewer than usual. Thus, it is clear from this testimony
that the employee complement was fairly elastic in that
each could and would work on each other's machines
and there would have been no problem with dividing the
remaining machines among all of the employees includ-
ing Paniagua after the six machines were shut down on
July 18. However, despite Esposito's initial testimony to
the contrary, it was not Paniagua's machines that were
shut down. As revealed by the company records, made
available and discussed later in the hearing, usually only
two of the six machines shut down between the weeks
ending July 30 and September 24 had previously been as-
signed to Paniagua.3 5 Thus, it is clear that Paniagua's
suspension had nothing to do with the machines which
he had been operating as initially intimated by Respond-
ent. Later, in the hearing, Edelson attempted to empha-
size that, which ever machines it was decided to shut
down, it would still have been Paniagua who was laid
off because Paniagua was the least senior employee. De-
spite Edelson's testimony, however, the fact remains that
Esposito specifically testified that "seniority was never
used at the company for layoffs or transfers or any-
thing," so that the only certainty about the matter is the
fact that Respondent's case is shot full of inconsistencies.
To sum up, relying on the above factors, I find the
General Counsel's case far more credible than that of
ss Each knitter was responsible for and assigned to between five and
seven specific machines. According to Esposito, Paniagua had been as-
signed to watch machines numbers 40, 41, 42, 47, 48, and 49. Though, as
noted above, Esposito initially testified that he was told by Edelson to
shut off Paniagua's machines, he later changed his testimony to state that
he never said that the machines he had been told to shut off were Pania-
gua's machines, only that they were machines that were not needed. This
is still one more example of Esposito's inconsistent and contradictory tes-
timony.
s4 According to the credited testimony of Paniagua, he worked over-
time from II1 a.m., July 17, to I a.m., July 18. It is not at all clear why
Esposito did not tell Paniagua on July 17 not to return to work the fol-
lowing day.
35 There was some discrepancy between Esposito's testimony and that
of Paniagua and Rodriguez as to precisely which machines had been as-
signed to Paniagua. I credit Paniagua on this point but in either case the
finding is that only two of his machines were shut down following his
suspension.
Respondent. I find that Paniagua was terminated because
of his union activity not because of any legitimate eco-
nomic reason, and that the fact that he was the most re-
cently hired employee was used as a mere convenience
to that end.
Paragraphs 6(b), (c), and (f) of the complaint allege
that Paniagua was reinstated on September 24 but with
less employment than he previously received and would
have received but for his having engaged in union activi-
ties. This allegation is supported by the record, at the
very least, to the extent that Paniagua did return to work
on September 24 at reduced hours, namely, a 35-hour
week, and that this was far fewer hours than he had
worked prior to his suspension. The only question is
whether the reduction in his working hours was discri-
minatorily or economically motivated.
According to Paniagua, when he returned to work, he
was assigned to the same machines as he had worked on
before his suspension. Though he was assigned to work
only 35 hours per week, the other knitters worked on the
average of 70 hours per week. When Esposito was asked
why Paniagua was permitted to work only 35 hours
when the other employees were permitted to work 70
hours, Esposito replied, "I don't know, they said to hire
him for thirty-five hours and this is what I did." Esposito
identified the individual who ordered him to rehire Pan-
iagua for 35 hours per week as Gerald Scher. Scher was
not called as a witness to explain this decision.s 6 Inas-
much as I have found that the suspension or layoff of
Paniagua was discriminatorily motivated and Respondent
has offered no explanation as to why he was restricted to
a 35-hour week upon his return while all other employ-
ees worked a normal workweek, I must conclude that
the disparate treatment of Paniagua was similarly moti-
vated. I find the assignment of a 35-hour workweek to
Paniagua upon his return from the disciminatory layoff
to have been in violation of Section 8(a)(1) and (3) of the
Act.
Paragraph 6(e) and (f) of the complaint alleges that on
September 13 and 18 Respondent issued final written dis-
ciplinary warnings to employees Ana Diaz, Isdoria
Gomez, and Octavio Rodriguez because said employees
engaged in union or protected concerted activity. With
regard to this issue the General Counsel contends that
the reasons submitted by Respondent for issuing the
warnings are "transparent and reveal thereunder the
animus of Respondent towards Octavio Rodriguez." In
support of this contention the General Counsel argues
that Rodriguez was the key union organizer, served as
observer for the Union at the representation election of
July 17, and that Rodriguez' vote was challenged by Re-
spondent on the basis of his supervisory status. Thus, it
follows, the General Counsel argues, that Respondent
was aware of Rodriguez' prounion sympathies.
I find merit in the General Counsel's contention that
Rodriguez was a prounion sympathizer and that Re-
3" Though Scher had, at the time of the hearing, just recently been
released from the hospital, Respondent was advised that the hearing
could be resumed after several weeks in order to permit Scher to testify,
if Respondent wished to present evidence through him. Respondent de-
clined the offer of a continuance.
364
GURABO LACE MILLS, INC.
spondent was well aware of it. I find knowledge on the
part of Respondent based not only on the small plant
theory and on the role Rodriguez played as observer for
the Union at the election but also on the basis of Re-
spondent's action following the closing of the polls. For
at the closing of the polls, the ballots were counted re-
vealing that of 14 ballots cast, 7 were in favor of the
Union, 6 were against the Union, and 1, that of Rodri-
guez, was challenged. Thus, if Respondent had any
doubt about Rodriguez' prounion sympathy it could
have withdrawn its challenge with the hope that Rodri-
guez' ballot, when counted, would have been against the
Union, thus defeating the organizing attempt there and
then. That Respondent maintained its challenge to Rodri-
guez' vote, sacrificing a possible immediate victory at the
polls convinces me that it was certain of Rodriguez'
prounion sympathies.37 By maintaining its position with
regard to Rodriguez' supervisory status, Respondent
hoped to defeat the Union by proving that the Union's
campaign was tainted by Rodriguez' participation there-
in. The General Counsel argues that since Respondent
knew that Rodriguez was a union adherent and since
Esposito admitted talking to employees during working
hours, the only objection to Rodriguez doing the same
thing was that he was suspected of speaking to them
about the Union. In further support of this theory the
General Counsel correctly points out that there is no
Company rule against one employee speaking with an-
other, that Esposito never inquired of Rodriguez what he
was talking to the other employees about, and that at no
time did Esposito reprimand Rodriguez, Diaz, or Gomez
for the actions which resulted in the issuance of the final
written warnings.
Respondent's position on this issue is best stated by
quoting it in its entirety, as it appears in its brief: "Warn-
ings were given in writing for the first time, because the
employees were now involved with a union." I take this
statement of position to mean that but for the presence
and organizing efforts of the Union, no written warnings
would have issued. The institution of a written warning
system as a response to a union organizing campaign is
violative of the Act and the issuance of particular writ-
ten warnings under the newly instituted program is like-
wise violative of Section 8(a)(l) and (3).38
But even without the admission by Respondent that
the warnings were in response to the advent of the
Union it is patently clear that the warnings were discri-
minatorily motivated rather than being issued for any le-
gitimate business consideration. Thus, the content of the
warning letter to Rodriguez complains about him going
over to the area of the mill where Diaz and Gomez
work. Yet in the warning letters to Diaz and Gomez Re-
spondent complains about their talking to their supervisor,
Octavio Rodriguez. If Rodriguez is, in fact, Diaz' and
Gomez' supervisor, how is he expected to supervise
a3 This conviction is all but fully substantiated by Esposito's admission,
while undergoing examination by the General Counsel, that he thought
that he had heard "that Octavio had promised that they [the employees]
would get more money and more holidays once the union won the elec-
tion," and that he had "heard this in the place but that nobody came to
me straight and said that."
38 Plastic Film Products Corp., 238 NLRB 135 (1978).
them without going into their area? The criticism is
absurd. Similarly, if it is Rodriguez' job to supervise the
two named employees, how does he do so without con-
versing with them. To issue a written warning to an indi-
vidual for talking to fellow employees when that per-
son's duties require him to talk to said employees in
order to perform his duties evidences discriminatory mo-
tivation. s 9 In the instant case, if Respondent is to be be-
lieved, Rodriguez is Diaz' and Gomez' supervisor and, of
necessity, must talk to them in order to supervise. To
issue him a written warning for doing so is evidence of
discriminatory motivation. Similarly, from the point of
view of Diaz and Gomez the warning letters are equally
absurd. Here, Respondent sends to the two rank-and-file
employees identical letters in which the point is especial-
ly made that Rodriguez is their supervisor. Then, instead
of going on to say that, since he is their supervisor, they
should listen to him, pay attention, and follow his orders,
the warning letters state that they should not talk to him.
If Rodriguez is, in fact, their supervisor, their superior,
what alternative do they have when he comes over to
talk to them? Walk away? The internal inconsistencies of
these warning letters, the illogicality of their issuance in-
dicates a certain ulterior motive.
Moreover, the warning letter to Rodriguez complains
about "social conversation" whereas Esposito, the plant
manager who signed the letter, testified that he did not
know what Rodriguez was talking to Diaz and Gomez
about, that it might well have concerned work. Of
course, he also admitted that he never bothered to ask
any of the three what the subject of their conversation
was about, and certainly there should have been some in-
terest in the subject matter of these conversations if the
discussions were serious enough to result in warning let-
ters. Failure of Respondent to investigate before issuing
the final warnings is evidence of discriminatory motiva-
tion.4 0
The warning letter to Rodriguez states that "this is the
first time that this matter has come to my attention," and
this may well be the case, for Esposito testified that his
displeasure with Rodriguez' talking to Diaz and Gomez
had never been brought to their attention before. That
being the case, why then were all three warning letters
titled "FINAL WRITTEN WARNING"? Such a cap-
tion would indicate that there were previous warnings
and that this warning would be the last in a series before
discharge. Yet, these three simultaneously issued warn-
ings were not the last in a series but the first warning re-
ceived by the individuals involved. That they were both
the first and final warnings is somewhat inconsistent in
itself. Granted that for an employer to issue a first and
final warning is probably not unheard of in the industrial
labor field, yet one would logically assume such a meth-
odology would be used only in cases where the particu-
lar offense is extremely serious, for example stealing,
fighting, drinking on the job, or similar taboos. Here,
what were the employees doing for which they were
given a "final warning" and threatened with discharge?
Sg GTE Lenkurt. Incorporated, 204 NLRB 921 (1973).
40 Sew Magic, Inc., 184 NLRB 924 (1970); Everest & Jennings Inc., 158
NLRB 1150(1966).
365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Talkingl Well, it is neither for me nor for the Board to
declare that the punishment must fit the crime, but in
such cases as here, where the disciplinary action taken is
far out of proportion with the stated offense, the action
taken evidences an ulterior motive.
Further, this set of warnings was not only the first re-
ceived by the individuals involved but the first issued to
any employee by Respondent in the entire history of its
existence. This too has been held to be evidence of dis-
criminatory motivation, 41 and I find it so here, especially
in light of the fact that there was never any rule against
employees talking among themselves4 2 while working in
existence at the time or before which might have been
the subject of enforcement.
Finally, despite the complaint contained in all three
warning letters that Rodriquez, Diaz, and Gomez were
refusing "to complete their work in good order" or "to
perform their job properly," Respondent offered abso-
lutely no evidence that whatever talking was going on
adversely affected production, and this has been held to
be evidence that such warnings were pretextually in-
spired.43
If, in fact, Respondent had no legitimate basis for issu-
ing the written warnings to Rodriguez, Diaz, and
Gomez, why did it do so, and why at this particular
time. Well, there is no doubt, as I have found, that Re-
spondent was aware of Rodriguez' prounion sympathies.
It is equally clear from Esposito's statement to Miguel
Hernandez, to the effect that employees who voted for
the union would be suspended, that Respondent was in-
terested in keeping the union out and punishing employ-
ees who opposed its position. Therefore, since Respond-
ent did not have the ready pretext of a lack of seniority
to get rid of Rodriguez as it had and used to lay off Pan-
iagua, it chose to issue a warning notice to Rodriguez to
punish him for his union activities and to set him up for
later discharge based on the newly instituted written
warning system, the warning notices to be used as evi-
dence in case of possible unfair labor practice charges.
The warning notices to Diaz and Gomez served as a
means of letting those individuals know that they would
be putting their jobs on the line by fraternizing with Ro-
driguez, the primary union adherent.
I believe that the warnings were issued at the time
they were because Respondent had just received notice
on September 13, 2 days before the notices were written
that there would be a hearing on objections to the elec-
tion and on the challenge to Rodriguez' ballot to deter-
mine whether or not Rodriguez is a supervisor. Respond-
ent was aware that if at the hearing Rodriguez was
shown to be a supervisor, the results of the election
might well be overturned. 44 It was therefore in the best
interest of Respondent to keep the other employees away
from Rodriguez both to keep him from soliciting their
support in case of a rerun election as well as to keep him
41 Tupm Division of Dart Industries Inc., 215 NLRB 424 (1974).
2 Ibid.; Ernest d Jennings, Inc. supra.
4s GTE Lenkurt. Incorporated supra
44 See Roper Corporation. Williamsburg Division, 213 NLRB 136 (1974),
for comparable factual situation where an employer's interest in keeping a
union out depended upon proving supervisory involvement in the orga-
nizing campaign.
from possibly obtaining their agreement to testify in the
forthcoming hearing on objections with respect to the
supervisory issue.45 Whether Respondent's motive was
one, several, or all of the above reasons, it was clearly
discriminatorily motivated, and I so find. The warnings
to Diaz and Gomez were clearly violative of Section
8(aXl) and (3) since they had the effect of discriminating
against them with regard to the tenure of their employ-
ment and tended to discourage membership in and activi-
ties on behalf of the Union.4 6
The warning of Rodriguez was either violative of Sec-
tion 8(aXI) or of Section 8(a)(3) and (1) depending upon
whether Rodriguez is considered to be a supervisor or an
employee. For as I see it, the warnings to Diaz, Gomez,
and Rodriguez were clearly intended to interfere with
any communications between employees concerning
their union activities, particularly with respect to the
forthcoming hearing concerning Rodriguez' status as a
supervisor or employee.4 7 And if this was, in fact, the
object of the warnings, then the three warnings reflected
not a concern for Rodriguez' loyalty to management as a
supervisor, but rather an action designed to interfere
with all Section 7 activity of all employees, a pattern of
conduct found unacceptable under the law and violative
of the Act. 4s
But perhaps one need not reach this line of cases; i.e.,
that which deals with a discriminatory act perpetrated
against a supervisor which is part of a pattern designed
to undermine the Section 7 rights of the rank and file.
Perhaps Rodriguez was not a supervisor but was, in fact,
an employee under the Act. Though the hearing officer
in Case 24-RC-6328 determined that Rodriguez was a
rank-and-file employee of Respondent and the Board
found him upon review to be a supervisor, the matter, in
my view, may still be relitigated under the circumstances
here involved, 49 and so it was.
4s According to the Hearing Officer's Report and Recommendations
on Challenged Ballot, Respondent adduced testimony in support of its
position from five unit employees and Petitioner from four employees in-
cluding Rodriguez and Paniagua
48 Sew Magic Inc., supra' Everest & Jennings, Inc., 158 NLRB 1150
(1966); TupaS Division of Dart Industries Inc. supra, GTE Lenkurt Incor-
pon-et srup
"4 The violation seems patently clear whether the discriminatory disci-
pline is punishment for previously giving testimony in a National Labor
Relations Board hearing such as in Better Monkey Grip Company, 115
NLRB 1170, enfd. 243 F.2d 836 (5th Cir. 1957), and Fuquo Homes (Okhio).
Inc, 211 NLRB 399 (1974). or is designed to interfere with the rights of
individuals to participate in some future hearing.
4 Donelson Packing Company. Inc, 220 NLRB 1043 (1975); Vada of
Oklahoma, Inc., 216 NLRB 750 (1975); Trustees of Boston Uniersity, 224
NLRB 1385 (1976); Illinois Fruit A Produce Cop., 226 NLRB 137 (1976);
J. D. Lundsford Plumbing, 237 NLRB 128 (1978); G and M Lath and
Plaster Ca., Inc; 252 NLRB 969; DRW Corporation d/b/a Brothers Three
Cabinets, 248 NLRB 969 (1980).
49 Ser-U-Stores Inc., 234 NLRB 1143 (1978); Robert E Anderson and
Richard E Anderson Co-partners d/b/a Anderson Cabinets, 241 NLRB
513 (1979); Amalgamated Clothing Workers of America. AFL-CIO v.
N.LRB. [Sagamore Shin Cal. 365 F.2d 898 (D.C. Cir. 1966);, Fry Foods
Inc., 241 NLRB 76 (1979); Capitol Foods Inc. d/b/a Schulte's IGA Food-
liner. 241 NLRB 855 (1979); Nevis Industries Inc. d/b/oa Fresno Towne-
house, 246 NLRB 1053 (1979). There is a distinction between the cited
cases and the instant case but the general principle seems applicable.
366
GURABO LACE MILLS, INC.
During the hearing in the instant case5 0 Rodriguez
credibly testified as to his duties as an employee of Re-
spondent. Rodriguez stated that he has been employed
by Respondent since 1973. Previously he had worked for
Respondent for 2 years at its Westchester Lace Compa-
ny mill located in West New York, New Jersey. He was
interviewed by Joseph Esposito and hired at Gurabo as a
machine operator. His job was to watch six machines
while they operated, to repair any broken threads, to bal-
ance beams and replace empty beams with full ones, and
to cut the lace. These were the duties of a knitter. Rodri-
guez was initially hired to work on the second shift but
later transferred to the day shift. At the time Rodriguez
was first hired, not all of Respondent's machines had
been set up and it employed only four employees in addi-
tion to Rodriguez and Esposito. Rodriguez credibly testi-
fied that the duties which he was initially assigned re-
mained the same from the date of his hire right up until
the date of the election, July 17, 1979.
Rodriguez testified that because of the nature of the
work and the fact that everyone knew what to do, very
few orders were necessary. These consisted mainly of
instructions as to when styles should be changed and
when lace should be cut. Esposito issued these orders.51
When one of the knitters would fail to report for work,
his machines were watched by the other knitters or by
the mechanic until Esposito or later Santiago called
someone in to replace the absent employee.52 If, on Sat-
urday, when Esposito were not present and Santiago had
not yet arrived, a problem should arise, either Perez or
Rodriguez would call Esposito who would decide what
to do. If no particular problems arose, the employees
performed their tasks without specific instructions since
they all were aware of their duties.
Rodriguez specifically denied that he ever hired
anyone53 and Respondent failed to produce any rank-
and-file witnesses to testify otherwise. Jesus Paniagua
stated that when he transferred to Gurabo he reported to
and received his instructions from Esposito just as he
'0 The Hearing Officer's Report and Recommendations on Challenged
Ballot, G.C. Exh. 16, and the Board's Decision at 249 NLRB 658 were
considered. Inasmuch as both were based upon the hearing held on Octo-
ber 18, 19, 22. and 23, 1979, which I find to have been tainted by Re-
spondent's unfair labor practices, I shall decide the supervisory status of
Rodriguez, de novo. Any exception taken by Respondent based on my de-
cision to determine Rodriguez' status de novo should be considered in
light of the fact that my decision was made necessary by Respondent's
own unfair labor practices designed specifically to undermine the hearing
in Case 24-RC-6328. It should likewise be noted that Edelson, who acted
as representative for Respondent in the instant case, was given numerous
opportunities to call witnesses concerning the supervisory status of Ro-
driguez but refused to do so.
5' Esposito also testified to this fact. When the female employees had
problems with their work, according to Rodriguez, they would go to
Esposito or Santiago for help. Only if Rodriguez happened to be in the
vicinity changing beams would he answer their questions. When Esposito
was in his office which was about 7 hours per day, he had Santiago take
charge in the shop. Both Esposito and Santiago issued instructions to Ro-
driguez according to the latter.
52 In the absence of both Esposito and Santiago, one of the knitters,
Perez or Rodriguez, would make the call.
63 Rodriguez admitted writing a letter advising one individual of an
opening. That individual was eventually hired but the record is not clear
as to who hired him. However, Montanez, another rank-and-file employ-
ee, contacted Morales to advise him of an opening. Morales was later
hired by Esposito. Thus the letter proves nothing.
had before from Scher. He was told at the time by Espo-
sito that if he were ever going to be absent, he should
call in. On one occasion this occurred, Paniagua called
in, spoke to Esposito, and the latter found a replacement
for him. According to Paniagua, Sanchez is in charge of
the night shift54 and Esposito the day shift. Whenever
Paniagua was called at home and told to report to work
early, it was always Esposito who called him. Similarly,
it was Esposito who told him and other employees to
remain to work overtime when a second-shift employee
had called in to say he was going to be late.
Rafael Morales testified that he was hired by Esposito.
Rodriguez was present at the hiring but only to act as
interpreter. Esposito5 5 would ask Morales questions
which Rodriguez would put into Spanish then, presum-
ably, would translate Morales' answers from Spanish to
English. Similarly, Esposito sometimes used Rodriguez
as interpreter when communicating with other employ-
ees in the day-to-day operations at the plant.
Morales testified basically in accordance with Rodri-
guez and Paniagua. According to Morales, Esposito sees
to it that all machines are operating correctly. When
Esposito is absent, Santiago, the mechanic, is in charge.
He answers the telephone and instructs the employees on
how to correct any problems which might arise in Espo-
sito's absence. Esposito assigns overtime to Morales
when he works on the day shift and Santiago did so
when he was on the night shift. He would also ask per-
mission from these two to leave early. Morales was told
when he was hired that if he were going to be absent or
late he was to call in and advise Esposito.
According to Morales, Esposito collects the timecards
and is responsible for computing the number of hours
each employee has worked. In Esposito's absence, if a
problem arises concerning the work, Morales goes to
Santiago to solve it. Before Santiago transferred to the
first shift, Morales would seek aid from Rodriguez in
Esposito's absence because he was the oldest employee.
Certain other employees would occasionally do likewise.
Morales described Rodriguez' duties as the same as
Perez', a knitter.
Miguel Hernandez testified that on the day shift he re-
ceived his instructions from Esposito and on the night
shift from Santiago. Esposito testified that the decisions
re styles and production are dictated from New Jersey.
He admitted in his testimony that he would instruct em-
ployees with regard to their work but added that the em-
ployees, particularly the female employees, might seek
the help of one of the knitters, Rodriguez or someone
else, to fix a machine. Thus, according to Esposito, if the
quality of the goods is not satisfactory, the "girls" (qual-
ity control employees) go to Esposito or more often Ro-
driguez, presumably to fix or adjust the machine in order
to improve the quality of those goods.
The only extended testimony on the supervisory status
of Rodriguez adduced through Respondent's witnesses
came from Leonard Edelson. Edelson testified in a self-
" If there are any problems on the night shift, Sanchez calls Esposito
to advise him and obtain instructions.
55 Esposito is an Italian and knows little Spanish.
367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
serving conclusionary manner that Rodriguez is a super-
visor on the day shift and sometimes on the night shift.
In particular, according to Edelson, Rodriguez, super-
vises Perez, a knitter, who watches seven machines.
Company records indicate that Perez is paid $4.40 per
hour while Rodriguez is paid only $4.10 per hour. The
records also indicate that Santiago receives $4.45 and
Sanchez $4.35 per hour, both more than Rodrigues.
Edelson testified that despite the fact that Santiago's
wages are higher than those of Rodriguez, Rodriguez is
still Santiago's supervisor. He endeavored to explain this
phenomenon by stating that Santiago is a mechanic. Me-
chanics, Edelson testified, are always paid more than su-
pervisors.56 Other knitters earn $3.80 and $4 per hour. I
find Edelson's testimony with regard to the wage struc-
ture unpersuasive and that the fact that other rank-and-
file employees are paid more than Rodriguez is support-
ive of the General Counsel's position that Rodriguez is a
nonsupervisory employee.
Edelson testified that the shift foreman on the first
shift, Rodriguez, is responsible for calling people in early
when there is a lot of work and that Rodriguez is re-
sponsible for having people stay over when second-shift
employees fail to show up, or when additional workers
are needed. Edelson stated that he is also responsible for
any problems that might arise when the plant supervisor,
Esposito, 5 7 is not there and can use independent judg-
ment in solving such problems.
I find Edelson's testimony concerning Rodriguez' day-
to-day duties unreliable. Edelson admitted on the record
that from the time the petition was filed to the date of
the hearing, approximately I year, he had spent no more
than 2 days at the plant and admitted further that he had
not been present to visually observe the work being
done. His testimony as to what Rodriguez actually does
is therefore almost valueless. There are a large number
of employees who could have been called to testify as to
precisely what they have observed at the plant as far as
Rodriguez' supervising is concerned. Respondent's repre-
"6 Edelson stated that a skilled mechanic or knitter is more difficult to
find than a foreman or supervisor. Therefore supply and demand war-
rants paying the former a higher wage than the latter.
57 In 249 NLRB 658 the Board determined from a record not before
me that Esposito is at the plant only 2 days a week. In the record in the
instant case, the subject of how often Esposito is in the plant was not
directly addressed. However, while Esposito was undergoing examination
with regard to the reasons why Rodriguez, Gomez, and Diaz were given
the warnings, the following testimony was adduced through him:
Q. How many times did you see him speaking to the employees?
A. Well lately, before we called it to his attention, it was about
every hour or so.
Q. Oh every hour?
A. Every hour or two hours. I would say something like that.
Q. Every day?
A. Every day.
Q. This is like nine times a day?
A. It could be, yes.
Q. For how many days, Mr. Esposito?
A. I can't tell you how many days.
Thus Esposito claims, in effect, to have been present at the plant every
day in order to witness Rodriguez allegedly talking to Diaz and Gomez.
From this testimony and that of other witnesses, I find no basis in the
instant case for concluding that Esposito is at the plant only twice a
week. On the contrary, it would appear from this and the general testi-
mony of all witnesses that Esposito is almost always available, except
Saturdays, to issue the instructions discussed herein.
sentative was advised of his right to call such witnesses.
He specically declined to do so. Similarly, he was ad-
vised of his right to question the General Counsel's wit-
nesses through cross-examination if they had already tes-
tified on the subject and through direct examination if
they had not. Respondent conducted very little cross-ex-
amination on the subject and declined to make any of the
available witnesses his own in order to conduct initial
direct examination of them to prove Rodriguez a super-
visor. Inasmuch as the only credible testimony in the
record is that of the General Counsel's witnesses, I find
that there is no evidence that Rodriguez is or ever was a
supervisor within the meaning of the Act during the
period relevant to these proceedings.
One other matter is of some value in determining
whether or not Rodriguez was a supervisor. The record
indicates that Rodriguez about September 1977 filed a
charge against Respondent with the Wage and Hour Di-
vision of the Commonwealth of Puerto Rico Labor De-
partment on behalf of Respondent's employees. Leonard
Edelson admitted on the record that Respondent's owner
was "very upset" with Rodriguez filing the charge.
Edelson also admitted that Respondent has been billed
$26,000 by that agency, a sum which is due as backpay
to its employees. It seems patently absurd for Respond-
ent to continue to employ Rodriguez under these cir-
cumstances if, as Respondent contends, he is a supervisor
and member of management. There would be no obliga-
tion for an employer to continue to employ an individual
in management who deliberately undermines its well
being by filing charges against the employer on behalf of
its employees resulting in such a financial loss. But, if
Rodriguez was a rank-and-file employee, his action
would be protected. Thus, it is patently clear that Re-
spondent knew full well that, when Rodriguez filed the
charge with the Wage and Hour Division, he was a
rank-and-file employee, was therefore protected and was
for that reason kept on the payroll. The only reason that
Respondent wants to have Rodriguez determined to be a
supervisor at this point in time is to undermine the elec-
tion campaign by relying on his participation therein to
overturn the ultimate results of the campaign. I find that
Rodriguez is a rank-and-file employee and that the warn-
ing which he received was, like the warnings to Gomez
and Diaz, violative of Section 8(a)(l) and (3) of the Act.
Paragraphs 6(d) and (f) of the complaint allege that
Respondent on September 18 transferred employee
Miguel Hernandez to the night shift from the day shift
because of his union activities. Respondent offers dual
defenses to this allegation. First, it argues that Diaz was
transferred to the day shift and Hernandez to the night
shift because Diaz had more seniority than Hernandez.
Secondly, Respondent argues that Diaz was transferred
to the day shift and Hernandez to the night shift because
Diaz was more experienced and was capable of working
two warper machines simultaneously while Hernandez
could not. I will consider these two reasons for Hernan-
dez' transfer seriatim.
With regard to seniority, the record indicates that
Diaz first obtained employment with Respondent in
1973. This was before either Rodriguez or Hernandez
368
GURABO LACE MILLS, INC.
had been hired. But Diaz did not remain with Respond-
ent. On the contrary he worked for Respondent on three
different occasions, quitting twice. Esposito testified that
Diaz had not quit but had merely taken time off on two
occasions, remaining all the while an employee of Re-
spondent. According to Esposito, the time off was occa-
sioned by problems at home which sometimes took 2 to
3 months5 8 to resolve before Diaz could return to work.
Under cross-examination, however, Esposito acknowl-
edged that when Diaz left the employ of Respondent the
last time, he went to work for another company. I feel
that Esposito's testimony was incredibly inconsistent on
this matter. Either Esposito knew that Diaz had taken
leave of Respondent for a few months to take care of
personal matters at home or he knew that Diaz had quit
his job, and had sought employment elsewhere. Compa-
ny records would certainly have indicated how long
Diaz had absented himself from the Company, yet Re-
spondent offered none, thus indicating no particular con-
cern on Respondent's part for an accurate record. And
the transcript vividly underscores Esposito's, therefore
Respondent's, total lack of interest in placing before the
trier of fact a consistent story concerning the reasons for
Diaz' absence from Respondent's plant.69 One can not
tell from Esposito's testimony why Diaz left Respond-
ent's employ, whether it was temporary, for personal
reasons, or permanent, in effect a quit. Thus:
Q. Gamaliel Diaz had worked with Gurabo Lace
on three different periods, had he not?
A. Yes he has. He took some time off of the
plant.
Q. Q. He quit actually, he didn't take time off,
didn't he?
A. He took time off. He had a problem home.
Q. When was that?
A. All three times he was out. He went out two
or three months and then he'd come back ...
Q. The last time he left the company he went to
work with another company, isn't that correct?
A. He left the company for some time off.
Q. He was working for another company and
you know that don't you?
A. Yes he went to work for another company be-
cause I had other people. I had another guy work-
ing in his place and I couldn't fire that guy ...
Q. In the period [during which] he was not
working for Gurabo Lace before he returned in
. . . 1977, he was working in another company and
you know that don't you?
A. Probably was working in another place, I
don't keep track.
5A At times during his examination by the General Counsel, Esposito
appeared confused as to the amount of time Diaz was away between his
stints as an employee of Respondent. At one point he stated that Diaz
was never away (out of Respondent's employ) for less than a year. Later,
he reiterated that Diaz' absences were for 2 or 3 months. Still later he
testified that the absences were for 4 or 5 months or "something like
that." I can not and do not believe that company records could not have
resolved this issue.
s9 Gerald Scher, Respondent's president, gave a sworn statement con-
cerning the reason for the switch in shifts between Diaz and Hernandez.
His reasons were based solely on seniority and generally paralleled Espo-
sito's testimony to that limited extent.
Q. So he was not just off taking care of his sick
mother or something like that. He was working in-
stead of working with your company?
A. If he was working with other people he said
he-he told me he was taking care of his sick
mother.
Q. You said he was out because he had personal
problems?
A. Okay, that's all.
Q. Do you know what personal problems he had
that he couldn't work with Gurabo Lace?
A. I don't.
Q. Did he ever tell you what the personal prob-
lems were?
A. No.
Q. When he came back for a job the last time at
Gurabo Lace, you did not want him did you?
A. I didn't say that. I said I couldn't take him
right now because I had somebody else in his place.
Q. Who did you hire in his place?
A. I had another guy working in his place. I just
can't throw the guy out and take on Gamaliel Diaz.
Q. The guy was already working and he kept
working?
A. Right, I said give me some time.
Q. So what did you do with him?
A. With who?
Q. With Gamaliel Diaz? Did you give him any
kind of a job the last time he came for a job?
A. No. I said give me some time and then afer
awhile the guy quit. The guy I had in place [of
Diaz] quit and I got Gamaliel Diaz [back].
From this testimony, particularly from the inconsisten-
cies contained therein, I find that Esposito can not be
credited wherever his testimony is at variance with that
of other witnesses. Moreover, I conclude that when Diaz
left the employ of Respondent, he was not considered to
be on leave or still an employee of Respondent tempo-
rarily away from the job. He was considered to have
quit his employment at Gurabo Lace. Thus, when he at-
tempted to get his old job back in 1977, Esposito refused
to terminate the employee previously hired to take Diaz'
place as he would have done if Diaz were still consid-
ered to be an employee of Respondent temporarily on
leave. Rather, Esposito treated Diaz on this occasion as
an applicant for employment and refused to hire him.
When the other employee quit later in the year, Esposito
rehired Diaz as, quite obviously, a new part-time em-
ployee on the night shift with a starting date of
10/20/77.6 ° The personnel records support this conclu-
sion for on Diaz' personnel record it states: "Date started
10/20/77," not 1973. Miguel Hernandez' personnel
record bears the starting date 2/11/76. Historically,
therefore, Hernandez had been considered the more
senior employee. This fact is evidenced also by an analy-
sis of Respondent's timecards which reflect a general
'° Diaz was given full-time employment in May 1978 when a second
warping machine was purchased. He remained, however, on the night
shift.
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
correlation s ' between the number assigned to each em-
ployee's timecard and the date on which that employee
was hired. Thus, starting with Esposito, the plant man-
ager, he was assigned No. I on his card. Nos. 2 through
7 were assigned in exact order of hire. From Nos. 8 to
15, if exceptions were made for the female employees
and for an employee named Solivan, it would appear as
though, generally speaking, employees with the longest
tenure with Respondent had the lowest numbers on their
timecards. On no occasion, that the record indicates, had
any employee been reassigned a new timecard number
prior to the September 1979 transfer of Gamaliel Diaz to
the day shift and the transfer of Miguel Hernandez to the
night shift other than in that month when Ana Diaz and
Gamaliel Diaz were moved up one place from No. 13 to
No. 12 and from No. 14 to No. 13, respectively, to fill in
for J. Rodriguez who had left the employment of Re-
spondent and who had been No. 12. In November, for
no apparent reason, Gamaliel Diaz was moved from No.
13 to No. 2 passing everyone on the list of employees
except Esposito. Why was Diaz given the No. 2 posi-
tion? Esposito testified that the numbers assigned to em-
ployees' timecards meant nothing, that they were as-
signed at random. I find Esposito's testimony with
regard to this matter equally as incredible as the rest of
his testimony. For in this particular instance the chang-
ing of G. Diaz' timecard from No. 13 to No. 2 required
not a single change but a change of almost everyone's
timecard number. If the number assigned to a particular
employee's timecard meant nothing, then why bother?
As it finally ended up, the renumbering of the timecards
resulted in 14 employees being assigned timecard num-
bers precisely in accordance with their date of hire,6 2
without exception, provided one were to accept Re-
spondent's assignment of a 1973 date to Gamaliel Diaz;
Solivan's termination;6 3 and Paniagua's new date of
rehire 9/78. The question of why Respondent should
suddenly decide to place all of its employees in a strictly
numerical sequence in accordance with seniority at this
particular time is open to conjecture. However, it would
appear, absent any other logical explanation, that Re-
spondent hoped to legitimize its decision to transfer Ga-
maliel Diaz to the day shift at the expense of Miguel
Hernandez who was transferred to the night shift, and to
further reward Gamaliel Diaz by making him number
two in seniority, over and above every other employee
with the exception of Plant Manager Joseph Esposito. It
is apparent that, until the advent of the union campaign,
the election and the postelection questions of the objec-
tion and challenge to Octavio Rodriguez' status and his
role in the campaign, Respondent regarded Gamaliel
Diaz as a fairly new employee, hired as of 10/20/77. As
' There are a few aberrations in this general correlation which are not
accounted for by testimony or documentation in the record. It may be
that rather than move every employee up one number when an individu-
al quit his job, Esposito, who was in charge of this bookkeeping duty,
simply assigned the newly vacated number to the newly hired individual.
62 As of may 1980.
63 Prior to May 1980. The record is silent as to why Solivan quit or
was terminated but just prior to his leaving Respondent's employ his
timecard number was changed from No. 10 in May, July, and September
1979 to No. 13 in November 1979. This apparent loss of seniority may or
may not have had something to do with his departure.
events unraveled during the critical period June through
October 1979, Respondent found reason to reconsider its
previous position with regard to Gamaliel Diaz' employ-
ment status. The reason for Respondent's redetermina-
tion of Diaz' seniority status will be discussed infra. Suf-
fice it to say, that by all the evidence, both testimonial
and documentary, when Scher advised Hernandez on
September 18, 1979, that he was being transferred to the
night shift and Gamaliel Diaz was being transferred to
the day shift because Diaz had been with the Company
longer, the reason given to Hernandez was false for it is
patently clear that until Respondent determined to
switch the shifts of the two employees involved, Re-
spondent never considered Diaz to have seniority over
Hernandez. The seniority argument proffered by Re-
spondent to Hernandez on September 18 and later to the
Board was fiction, pretextually used to support its deci-
sion clearly made for reasons not revealed at the time to
Hernandez. The fact that Respondent should choose to
offer such a patently transparent, pretextual reason for
the change in shifts is clear evidence of an ulterior
motive.
Esposito testified that the second reason why Diaz was
transferred to the day shift and Hernandez was trans-
ferred to the night shift was that Diaz was capable of
running both warping machines simultaneously while
Hernandez was not. At the outset it should be noted that
this reason was never mentioned to Hernandez when he
was informed of his forced transfer to the night shift.
Similarly, this reason was never mentioned by Scher in
his affidavit dated October 22, 1979, given to the Nation-
al Labor Relations Board agent investigating this case.
On the contrary Scher told the investigator only that the
transfers were the result of Diaz being the senior em-
ployee of the two. Clearly, there is here a belated shift in
defenses warranting the conclusion that the second
reason given was merely an afterthought concocted for
purposes of the hearing and warranting the inference
that the true reasons for the transfers were based on
something other than the reasons proffered by Respond-
ent, inferentially violative.
Aside from the above-discussed inferences there is
available evidence in the testimony, or lack thereof, to
warrant the conclusion that this second defense of Re-
spondent concerning the transfers of Diaz and Hernan-
dez is without merit. First of all it was generally conced-
ed that the first shift is preferable to the second as far as
the employees are concerned. Both Diaz and Hernandez
preferred the day shift. Since the second reason offered
by Respondent for the transfer of Diaz to the first shift
concerned Diaz' ability to run two warping machines si-
multaneously, why was Diaz not called to testify to de-
scribe his alleged expertise. He would certainly be the
most knowledgeable employee with regard to the subject
and the most self-interested since it is his position on the
first shift that is at stake. Failure of Respondent to call
Diaz under these circumstances, without explanation, jus-
tifies the inference that, if he were called, he could not
honestly support Respondent's contention.
Respondent relied primarily on the testimony of Espo-
sito with regard to its contention that Diaz is a better
370
GURABO LACE MILLS, INC.
warper than Hernandez and can operate both warpirig
machines simultaneously. Thus, Esposito testified that
both he and Scher together decided to transfer Diaz to
the day shift because "we needed Mr. Gamaliel Diaz be-
cause he had more experience and we've got more
change-overs on the machines." Diaz was, according to
Esposito, better at making changeovers on the warping
machine and for this reason he was needed on the day
shift. Though Scher was supposed to have made the de-
cision, along with Esposito, to transfer Diaz for these
reasons, Scher made no mention of Diaz' experience or
his expertise at making changeovers though he dedicated
almost a full page of his affidavit to the subject of why
Diaz was transferred.
Esposito testified on the subject more fully elsewhere:
We put Johnny [Diaz]64 on the first shift. . . be-
cause he knows more about machines and . . . be-
cause I can depend on him. He comes when I need
him and he runs two [warper] machines.... So
he's a better warper than Miguel, because he can
run two machines at the same time and that makes
it better for me because we can produce more.
Esposito testified further that, if Hernandez were to
run only one machine on the first shift instead of Diaz
running two machines, "Maybe we would have to stop
or shut off the knitting machines because . . . if one
[warping] machine runs, it doesn't produce enough to
keep those 18 [knitting] machines running.
Again, I find Esposito's testimony lacking in credibil-
ity. Once again it should be noted that Scher did not
mention in his affidavit any of these reasons for transfer-
ring Diaz. Moreover, Esposito's statement that he put
Diaz on the first shift because he could "depend on him"
is truly strange in light of the fact that Diaz quit Re-
spondent's employ on three separate occasions and that,
the last time Diaz tried to return, Esposito did not want
to take him back at all. For these reasons and others dis-
cussed, infra, I do not credit Esposito's testimony as to
the reasons for Respondent's decision to transfer Diaz.
Leonard Edelson also testified on behalf of Respond-
ent with regard to this matter as follows:
I would like to state that I have spoken to Joe
Esposito and he has advised me that he needs
Johnny [Diaz] on the first shift to work two warp-
ers because Miguel says he can not.... Miguel
says he can not work two warpers. The two warp-
ers must be worked on the first shift because the
girls65 are on the first shift and they help with the
changes that take place on the creel.
Thus, though Edelson testified that Miguel Hernandez
had been asked by Esposito to work two warping ma-
chines and Hernandez had stated to Esposito that he
·4 Gamaliel Diaz, for some unexplained reason, is also known as
Johnny Colon, and is referred to in the record frequently by that name.
6' Isdoria Gomez and Ana Diaz, the female employees to whom Edel-
son was referring, were not called to testify. Edelson, as noted above,
only visited the plant on two occasions between the time the petition was
filed and the date of the hearing. His information concerning the work
performed by Gomez and Ana Diaz is clearly second hand and I do not
rely on it.
could not do so, and that this information was passed on
to Edelson, when Edelson sought corroboration on this
point from Esposito, the following testimony was ad-
duced:
Q. (By Edelson): Have you asked Miguel if he
will watch two warping machines? .... In other
words, Joe, did you ever ask Miguel if he would
work two [warping] machines?
A. (By Esposito): No, I didn't.
Clearly, Edelson and Esposito had not compared
notes. On the basis of the contradictory testimony of
Edelson and Esposito, I find Respondent's position with
regard to this defense unworthy of belief. More particu-
larly, I find that Respondent never bothered to ask Her-
nandez whether he could or would work two warping
machines simultaneously, a step which, under ordinary
circumstances, would have been taken before transfer-
ring him to the night shift and transferring Diaz to the
day shift since there is no indication in the record that
Diaz had ever operated both warpers simultaneously in
the past. The assumption that Diaz could operate two
wrapers simultaneously but that Hernandez could not
would have been just that-an assumption, hardly
enough to warrant the transfer of both employees with-
out the slightest investigation into the matter. Of course,
Esposito testified that Diaz was the more experienced of
the two but if this bald assertion were to be taken at face
value, why then was Hernandez receiving a higher wage
than Diaz. It is axiomatic that there is a positive correla-
tion between performance and pay. I consider the testi-
mony of Respondent's own witnesses on the subject in-
credible on its face.
But there was other testimony on the subject of Diaz'
expertise or lack thereof and on his ability or lack of
ability to work two warping machines simultaneously.
Thus, Hernandez testified that since he first began work-
ing on the night shift on September 24, 1979, it has been
his practice to report early, before the 3 p.m. starting
time, and even earlier on Thursdays, payday, in order to
pick up his check. He stated that on no occasion had be
ever seen Diaz operate both warpers at the same time.
Rather, he had seen him work on just one machine at a
time, just as he himself had done. Hernandez testified
credibly that an employee could watch two warpers at
the same time but that doing so would cause too many
problems since the threads break too often and, if the
machines continue to run, which they frequently do be-
cause the automatic stop does not always work, a large
hole can be created in the goods. In the absence of any
testimony from any of Respondent's employees that he
or she witnessed Diaz operate the two warper machines
simultaneously; in light of Diaz' failure to testify on this
subject; on the basis of Hernandez' credible testimony on
the subject; because Esposito admitted that he never
asked Hernandez if he would operate both warpers at
once; and for the other reasons enumerated above, I con-
clude that Respondent's second, like its first, alleged
reason for transferring Diaz to the day shift and Hernan-
dez to the night shift, namely, because of Diaz' ability to
run two warping machines at one time, is purely fictional
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the true reason for the double transfer lies else-
where.
The General Counsel alleges that the transfer of Her-
nandez to the less desirable night shift was in retaliation
for his union activity and contends that this can be justly
found because Hernandez was, in fact, active on behalf
of the Union, because of the timing of the act of transfer
and because the reasons set forth by Respondent for
making the transfer are so patently pretextual. In my
opinion, the General Counsel's argument is sound as far
as it goes. For Hernandez had in fact signed a union card
given to him by Rodriguez and I would find company
knowledge as I had with Rodriguez and Paniagua, not
only on the basis of the small-plant theory but also on
the basis of Esposito's admission to Hernandez that "the
boss had a list of names of the people who were going to
vote for the union" and would layoff or suspend them
after the election. I would also find that the timing of the
transfer, the announcement of the same occurring as it
did on September 18, the very day Rodriguez, Gomez,
and Ana Diaz received their violative discharge warn-
ings, is evidentiary of discriminatory motivation in that
the transfer appears more likely to be a part of a pattern
of discrimination aimed at all union sympathizers. The
only question left unanswered by the General Counsel's
theory is, why would Respondent punish Hernandez for
signing a union card by discriminatorily assigning him to
the less desirable night shift while at the same time re-
warding Diaz, another union card signer,"" by assigning
him to the preferred day shift? Well, the answer is not all
that difficult to provide. As noted earlier in this decision,
Paniagua did the organizing of the night shift obtaining
the signatures of Solivan and Diaz on union authoriza-
tion cards. Although Esposito initially denied talking to
Diaz about the Union, he ultimately admitted that he had
a conversation with Diaz at the warper where Diaz was
working before the election and that Diaz told him that
Paniagua had forged his (Diaz') name to a union authori-
zation card. Although Esposito testified that this was all
that Diaz told him concerning union activities among the
employees, I find it patently incredible that the entire
conversation started and ended with this statement. It is
quite apparent that Diaz, by informing Esposito about
Paniagua's union organizing activity, while denying his
own complicity therein, allied himself with Respondent's
cause; namely, that of undermining the union campaign.
It is quite apparent that Respondent had much to gain by
transferring its informant to the day shift. First, the
transfer was a reward for Diaz for informing Respondent
of the union activities of its employees, Paniagua in par-
ticular, and possibly others. The information obtained
from Diaz was acted upon the day after the election
when Paniagua was unceremoniously laid off. Second,
the removal of Hernandez from the first shift furthered
Respondent's plan to separate Rodriguez from the other
employees who might ally themselves with his and the
Union's cause, a plan manifested quite clearly the very
day of the announced transfer through the issuance of
the three warning letters which threatened Isdoria
'6 The card of Gamaliel Diaz Hernandez, otherwise referred through-
out this decision as Diaz, was offered into evidence during the hearing
and is part of the record.
Gomez and Ana Diaz with discharge for talking with
Rodriguez. Third, the assignment of Diaz to Rodriguez'
shift placed among the employees whom Respondent
suspected of continued union activity and/or preparation
of the Charging Party's case in the forthcoming repre-
sentation case hearing, an informant upon whom it could
rely to obtain further information as to their activity. I
find Respondent's removal of Hernandez for these un-
lawful purposes violative of Section 8(a)(1) and (3) of the
Act.
Paragraph 5(e) alleges that on September 18, 1979,
Gerald Scher warned and directed an employee to re-
frain from giving any assistance or support to the Union
and threatened said employee with discharge and other
reprisals if he continued to give any assistance and sup-
port to the Union. The record clearly shows that on the
cited date Scher told Rodriguez that, if Esposito caught
him talking to the employees, he was authorized by
Scher to fire him immediately. Since I have found that
the warnings issued on that date, covering the same sub-
ject matter as Scher's statement, were designed to inter-
fere with the Section 7 rights of Respondent's employ-
ees, I find that Scher's statement was likewise designed
to obtain the same unlawful end. My reasons for so de-
ciding are the same with regard to both findings. Re-
spondent did, as alleged, violate Section 8(a)(l) with
regard to Scher's September 18 oral warning to Rodri-
guez.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with its operations described above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take appropriate and affirma-
tive action designed to effectuate the policies of the Act.
In particular, as I have found that employee Paniagua
was discriminatorily laid off and when reinstated was
given less employment than he previously had received
and with less employment than he normally would have
received, I shall recommend that Respondent be required
to offer him full and immediate reinstatement and that
Respondent be required to reimburse him both for lost
wages due to the layoff and lost wages due to the de-
crease in hours worked,6 7 with backpay and interest
thereon to be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).68
61 The record indicates that as of the date of the hearing Paniagua
may have been reinstated to his previous position and former hours.
68 See, generally, Isis Plumbing & Heating Ca, 138 NLRB 716 (1962).
372
GURABO LACE MILLS, INC.
I shall also recommend that Respondent be required to
reinstate Miguel Hernandez to the day shift and to
remove from the personnel files of Ana Diaz, Isdoria
Gomez, and Octavio Rodriguez the warning notices
issued to them on September 18, 1979.
CONCLUSIONS OF LAW
1. Gurabo Lace Mills, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Union General de Trabajadores de Puerto Rico is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening an employee with discharge of em-
ployees who voted for the Union, creating the impres-
sion that union activities of employees were under sur-
veillance, and warning and directing an employee to re-
frain from giving assistance and support to the Union
and threatening said employee with discharge for so
doing, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8 (aX1) of the Act.
4. By laying off employee Jesus Paniagua because of
his union activities, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
5. By reducing the hours of employment normally
made available to Jesus Paniagua following his reinstate-
ment, because of his union activity, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(aXl) and (3) of the Act.
6. By transferring its employee Miguel Hernandez to a
less desirable shift because of his union activities, Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
7. By issuing final written warnings to employees Ana
Diaz, Isdoria Gomez, and Octavio Rodriguez, in order
to prevent them from participating in union activities or
suspected union activities, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
8. The aforesaid unfair labor practices are unfair lebor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case and pursuant to
Section 10(c) of the Act, I hereby issue the following re-
commeded:
ORDER 69
The Respondent, Gurabo Lace Mills, Inc., Gurabo,
Puerto Rico, its officers, agents, successors, and assigns,
shall:
69 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
i. Cease and desist from discouraging membership in
activities on behalf of or sympathies toward Union Gen-
eral de Trabajadores de Puerto Rico, or any other labor
organization by:
(a) Threatening employees with discharge for voting
for the Union.
(b) Creating the impression that union activities of em-
ployees are under surveillance.
(c) Warning and directing employees to refrain from
giving assistance and support to the Union and threaten-
ing said employees with discharge for so doing.
(d) Laying off employees because of their union activi-
ties.
(e) Reducing the hours of employment of employees
because of their union activities.
(f) Transferring employees to less desirable shifts be-
cause of their union activities.
(g) Issuing final written warnings in order to prevent
employees from participating in union activities or sus-
pected union activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Jesus Paniagua immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of pay he may
have suffered as a result of his layoff, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Restore to Jesus Paniagua the hours of employ-
ment normally made available to him prior to his dis-
criminatory layoff and make him whole for any loss of
pay he may have suffered as a result of the reduction in
his hours following his reinstatement, in the manner set
forth in the section of this decision entitled "The
Remedy."
(c) Transfer Miquel Hernandez to the first (day) shift.
(d) Remove from the personnel files of Ana Diaz, Is-
doria Gomez, and Octavio Rodriguez the warning no-
tices issued to them on September 18, 1979.
(e) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary or useful in complying with the terms of this
Order.
(f) Post at its plant in Gurabo, Puerto Rico, copies of
the attached notice marked "Appendix." 70 Copies of said
notice, on forms provided by the Regional Director for
Region 24, shall, after being duly signed by Respondent,
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
TO In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 24, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
374